Indian Evidence Act

Preamble

(Act No.1 of 1872)

[15th March,1872]

(As modified up-to-date)

Whereas it is expedient to consolidate, define and amend the Law of Evidence; it is hereby enacted as follows:

1. Short title, extent and commencement - This Act may be called the Indian Evidence Act,1872.

It extends to the whole of India except the State of Jammu and Kashmir and applies

to all judicial proceedings in or before any Court, including Court-martial, other than

Courts-martial convened under the Army Act (44 and 45 Vict.,c.58), [the Naval

Discipline Act (29 and 30, Vict.,c.109) or the Indian Navy (Discipline) Act,1934 (34

of 1934) or the Air Force Act (7Geo.5.,C51)] but not to affidavits presented to any Court or Officer, nor to proceedings before an arbitrator;

and it shall come into force on the first day of September,1872.

2. [Repeal of enactment.] Rep. By the Repealing Act,1938 (1 of 1938), S.2

and Sch.

3. Interpretation clause - In this Act the following words and expressions are used

in the following senses, unless a contrary intention appears from the context:-

"Court" - "Court" includes all Judges and Magistrates, and all person, except arbitrators, legally authorized to take evidence.

"Fact" - "Fact" means and includes -

1. Anything, state of things, or relation of things, capable of being perceived by the

senses;

2. Any mental condition of which any person is conscious.

(a) That there are certain objects arranged in a certain order in a certain place, is a fact.

(b) That a man heard or saw something, is a fact.

(c) That a man said certain words, is a fact.

(d) That a man holds a certain opinion, has a certain intention, acts in good faith or

fraudulently, or uses a particular word in a particular sense, or is or was at a

specified time conscious of a particular sensation, is a fact.

(e) That a man has a certain reputation, is a fact.

"Relevant" - One fact is said to be relevant to another when the one is connected

with the other in any of the ways referred to in the provisions of this Act relating to the relevancy of facts.

"Fact in issue" - The expression "facts in issue" means and includes-any fact from

which, either by itself or in connection with other fact, the existence, non-existence,

nature or extent of any right, liability or disability, asserted or denied in any suit or proceeding, necessarily follows.

Explanation - Whenever, under the provisions of the law for the time being in force

relating to Civil Procedure, any Court records an issue of fact, the fact to be asserted

or denied in the answer to the such issue, is a fact in issue.

A is accused of the murder of B.

At his trail the following facts may be in issue:

that A caused B's death;

that A intended to cause B's death;

that A had had received grave and sudden provocation from B;

that A at the time of doing the act, which caused B's death,

was by reason of unsoundness of mind, incapable of knowing its nature.

"Document" - "Document" means any matter expressed or described upon any

substance by means of letter, figures or makes, or by more than one of those

means, intended to be used, or which may be used, for the purpose of recording that matter.

A writing is a document;

Words printed, lithographed or photographed are document;

A map or plan is a document;

An inscription on a metal plate or stone is a document;

A caricature is a document.

"Evidence" - "Evidence" means and includes -

(1) All statements which the Court permits or requires to be made before it by

witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence.

(2) All documents produced for the inspection of the Court; such documents are

called documentary evidence.

"Proved" - A fact is said to be proved when, after considering the matters before it,

the Court either believes it to exist, or considers its existence so probable that a

prudent man ought under the circumstances of the particular case, to act upon the

supposition that it exists.

"Disproved" - A fact is said to be disproved when, after considering the matters

before it, the Court either believes that it does not exist or considers its non-

existence so probable that a prudent man ought, under the circumstances of the

particular case, to act upon the supposition that it does not exist.

"Not proved" - A fact is said not to be proved when it is neither proved nor disproved.

["India" means the territory of India excluding the State of Jammu and Kashmir.]

4. "May presume" - Whenever it is provided by this Act that the Court may

presume a fact, it may either regard such fact as proved, unless and until it is

disproved, or may call for proof of it.

"Shall presume" - Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved.

"Conclusive proof" - Where one fact is declared by this Act to be conclusive proof of

another, the Court shall, on proof of the one fact, regard the other as proved, and

shall not allow evidence to be given for the purpose of disproving it.

5. Evidence may be given of facts in issue and relevant facts - Evidence may

be given in any suit or proceeding of the existence or non-existence of every fact in

issue and of such other facts as are hereinafter declared to be relevant, and of no others.

Explanation - This section shall not enable any person to give evidence of a fact

which he is disentitled to prove by any provision of the law for the time being in force relating to Civil Procedure.

Illustrations

(a) A is tried for the murder of B by beating him with a club with the intention of causing his death.

At A's trial the following facts are in issue -

A's beating B with the club;

A's causing B's death by such beating;

A's intention to cause B's death.

(b) A suitor does not bring with him and have in readiness for production at the first

hearing of the case, a bond on which he relies. This section does not enable him to

product the bond or prove its contents at a subsequent stage of the proceedings

otherwise than in accordance with the conditions prescribed by the Code of Civil Procedure.

6. Relevancy of facts forming part of same transaction - Facts which, though

not in issue are so connected with a fact in issue as to form part of the same

transaction, are relevant, whether they occurred at the same time and place or at different times and places.

Illustrations

(a) A is accused of the murder of B by beating him. Whatever was said or done by A

or B or the by-standers at the beating, or so shortly before or after is as to from part of the transaction, is a relevant fact.

(b) A is accused of waging war against the Government of India by taking part in an

armed insurrection in which property is destroyed, troops are attacked and goals are

broken open. The occurrence of these facts is relevant, as forming part of the general transaction, though A may not have been present at all of them.

(c) A sues B for a libel contained in a letter forming part of a correspondence. Letters

between the parties relating to the subject out of which the libel arose, and forming

part of the correspondence in which it is contained, are relevant facts, though they do not contain the libel itself.

(d) The question is whether certain goods ordered from B were delivered to A. the

goods were delivered to several intermediate persons successively. Each delivery is a relevant fact.

7. Facts which are occasion, cause or effect of facts in issue - Facts Which are

the occasion, cause or effect, immediate or otherwise, of relevant facts, or facts in

issue, or which constitute the state of things under which they happened, or which afforded an opportunity for their occurrence or transaction, are relevant.

Illustrations

(a) The question is, whether A robbed B.

The facts that, shortly before the robbery B went to a fair with money in his

possession, and that he showed it or mentioned the fact that he had it, to third

persons, are relevant.

(b) The question is, whether A murdered B.

Marks on the ground, produced by a struggle at or near the place where the murder

was committed, are relevant facts.

(c) The question is, whether A poisoned B.

The state of B's health before the symptoms ascribed to poison and habits of B,

known to A, which afforded an opportunity for the administration of poison, are

relevant facts.

8. Motive preparation and previous or subsequent conduct - Any fact is

relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.

The conduct of any party, or of any agent to any party, to any suit or proceeding, in

reference to such suit or proceeding, or in reference to any fact in issue therein or

relevant thereto, and the conduct of any person an offence against whom is the

subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.

Explanation 1. - The word "conduct" in this section does not include statements

unless those statements accompany and explain acts other than statements; but this

explanation is not to affect the relevancy of statements under any other section of this Act.

Explanation 2. - When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant.

Illustrations

(a) A is tried for the murder of B.

The facts that, A murdered C, that B knew that A had murdered C, and that B had

tried to extort money from A by threatening to make his knowledge public, are relevant.

(b) A sues B upon a bond for payment of money. B denies the making of the bond.

The fact that, at the time when the bond was alleged to be made, B required money

for a particular purpose, it relevant.

(c) A is tried for the murder of B by poison.

The fact that, before the death of B,A procured poison similar to that which was administered to B, is relevant.

(d) The question is, whether a certain document is the will of A.

The facts that not long before the date of the alleged will A made inquiry into

matters to which the provisions of the alleged will relate that he consulted vakils in

reference to making the will, and that he caused drafts or other wills to be prepared

of which he did not approve, are relevant.

(e) A is accused of a crime.

The facts, either before or at the time of, or after the alleged crime, A provided

evidence which would tend to give to the facts of the case an appearance favorable

to himself, on that he destroyed or concealed evidence, or prevented the presence or

procured the absence of persons who might have been witnesses, or suborned

persons to give false evidence respecting it, are relevant.

(f) The question is, whether A robbed B.

The facts that, after B was robbed, C said in A's presence - "the police are coming to

look for the man who robbed B" and that immediately afterwards A ran away, are relevant.

(g) The question is, whether A owes B rupees 10,000.

The fact that, A asked C to lend him money, an that D said to C in A's presence and

hearing "Advice you The Orient Tavern to trust A, for he owes B 10,000 rupees" and that A went away without making any answer, are relevant facts.

(h) The question is, whether A committed a crime.

The facts that, A absconded after receiving a litter warning him that inquiry was

being made for the criminal, and the contents of the letter, are relevant.

(i) A is accused of a crime.

The facts that, after the commission of the alleged crime, he absconded or was in

possession of property or the proceeds of property acquired by the crime, or

attempted to conceal things which were or might have been used in committing it, are relevant.

(j) The question is whether A was ravished.

The facts that, shortly after the alleged rape, she made a complaint relating to the

crime, the circumstances under which, and the terms in which the complaint was

made, are relevant.

The facts that, without making a complaint, she said that she had been ravished is

not relevant as conduct under this section, though it may be relevant as a dying

declaration under section 32, clause 1, or as corroborative evidence under section

157.

(k) The question is whether A was robbed.

The fact that, soon after the alleged robbery, he made a complaint, relating to the

offence, the circumstances under which, and the terms in which the complaint was made, are relevant.

The fact that he said he had been robbed without making any complaint, is not

relevant, as conduct under this section, though it may be relevant as a dying

declaration under section 32, clause 1, or as corroborative evidence under section

157.

9. Facts necessary to explain or introduce relevant facts - Facts necessary to

explain or introduce a fact in issue or relevant fact, or which support or rebut an

inference suggested by a fact in issue or relevant fact, or which establish the identity

of any thing or person whose identity is relevant, or fix the time or place at which

any fact in issue or relevant fact happened, or which show the relation of parties by

whom any such fact was transacted, are relevant in so far as they are necessary for

that purpose.

Illustrations

(a) The question is, whether a given document is the will of A.

The state of A's property and of his family at the date of the alleged will may be

relevant facts.

(b) A sues B for a libel imputing disgraceful conduct to A;B affirms that the matter alleged to be libelous is true.

The position and relations of the parties at the time when the libel was published may be relevant facts as introductory to the facts in issue.

The particulars of a dispute between A and B about a matter unconnected with the

alleged libel are irrelevant, though the fact that there was a dispute may be relevant

if it affected the relations between A and B.

(c) A is accused of a crime.

The fact that, soon after the commission of the crime, A absconded from his house,

is relevant under section 8, as a conduct subsequent to and affected by facts in issue.

The fact that, at the time when he left home he had sudden and urgent business at

the place to which he went is relevant, as tending to explain the fact that he left

home suddenly.

The details of the business on which he left are not relevant except in so far as they are necessary to show that the business was sudden and urgent.

(d) A sues B for inducing C to break a contract of service made by him with A.C, on

leaving A's service, says to A - "I am leaving you because B has made me better

offer." The statement is a relevant fact as explanatory of C's conduct which is

relevant as a fact in issue.

(e) A, accused of theft is seen to give the stolen property to B, who is seen to give it

to A's wife. B says as he delivers it "A says you are to hide this." B's statement is relevant as explanatory of a fact which is pat of the transaction.

(f) A is tried for a riot and is proved to have marched at the head of a mob. The cries of the mob are relevant as explanatory of the nature of the transaction.

10. Things said or done by conspirator in reference to common design -

Where there is reasonable ground to believe that two or more persons have

conspired together to commit an offence or an actionable wrong, anything said, done

or written by any one of such persons in reference to their common intention, after

the time when such intention was first entertained by any one of them is a relevant

fact as against each of the persons believed to be so conspiring, as well as for the

purpose of proving the existence of the conspiracy as for the purpose showing that any such persons was a party to it.

Reasonable grounds exists for believing that A has joined in a conspiracy to wage war against the Government of India

The facts that, B procured arms in Europe for the purpose of the conspiracy, C

collected money in Calcutta for a like object, D Persuaded persons to join the

conspiracy in Bombay. E published writings advocating the object in view at Agra,

and F transmitted from Delhi to G at Kabul the money which C had collected at

Calcutta, and the contents of a letter written by H giving an account of the

conspiracy, are each relevant, both to prove the existence of the conspiracy, and to

prove A's complicity in it, although he may have been ignorant of all of them and

although the persons by whom they were done were strangers to him, and although they may have taken place before he joined the conspiracy or after he left it

11. When Facts not otherwise relevant become relevant - Facts not otherwise

relevant, are relevant.

(1) if they are inconsistent with any fact in issue or relevant fact;

(2) if by themselves or in connection with other facts they make the existence or

non-existence of any fact in issue or relevant fact highly probable or improbable.

Illustrations

(a) The question is, whether A committed a crime at Calcutta on a certain day.

The fact that, on that day, A was at Lahore, is relevant.

The fact that, near the time when the crime was committed, A was at a distance

from the place where it was committed, which would render it highly improbable, though not impossible, that he committed it, is relevant.

(b) The question is, whether A committed a crime.

The circumstances are such that the crime must have been committed either by A,

B, C or D. Every fact which shows that the crime could have been committed by no one else and that it was not committed by either B, C or D is relevant.

12. In suits for damages, facts tending to enable Court to determine amount

are relevant - In suits in which damages are claimed, any fact which will enable the

Court to determine the amount of damages which ought to be awarded, is relevant.

13. Facts relevant when right or custom is in question - Where the question is

as to existence of any right or custom, the following facts are relevant:

(a) any transaction by which the right or custom in question was created, claimed

modified, recognized, asserted or denied, or which was inconsistent with its

existence;

(b) Particular instances in which the right or custom was claimed, recognized, or

exercised, or in which its exercise was disputed, asserted, or departed from.

Illustrations

The question is whether A has a right to a fishery. A deed conferring the fishery on

A's ancestors, a mortgage of the fishery by A's father, a subsequent grant of the

fishery by A's father irreconcilable with the mortgage particular instances in which

A's father exercised the right or in which the exercise of the right was stopped by A's neighbors, are relevant facts.

14. Facts showing existence of state of mind or of body or bodily feeling -

Facts showing the existence of any state of mind, such as intention, knowledge, good

faith, negligence, rashness, ill-will or goodwill towards any particular person, or

showing the existence of any state of body or bodily feeling, are relevant, when the

existence of any such state of mind or body or bodily feeling is in issue or relevant.

Explanation 1 - A fact relevant as showing the existence of a relevant state of mind

must show that the state of mind exists, not generally but in reference to the

particular matter in question.

Explanation 2. - But where, upon the trail of a person accused of an offence, the

previous commission by the accused of an offence is relevant within the meaning of this Section, the previous conviction of such person shall also be a relevant fact.

Illustration

(a) A is accused of receiving stolen goods knowing them to be stolen. It is proved that he was in possession of a particular stolen article.

The fact that, at the same time, he was in possession of many other stolen articles is

relevant, as tending to show that he knew each and all of the articles of which he was in possession to be stolen.

(b) A is accused of fraudulently delivering to another person a counterfeit coin which,

at the time when he delivered it, he knew each and all of the articles of which he was in possession to be stolen.

The fact that, at the time of delivery A was possessed of a number of other pieces of

counterfeit coin, is relevant.

The fact that, A had been previously convicted of delivering to another person as genuine a counterfeit coin knowing it to be counterfeit is relevant.

(c) A sues B for damage done by a god of B's which B knew to be ferocious.

The facts that, the dog had previously bitten X, Y and Z and that they had made complaints to B are relevant.

(d) The question is, whether A, the acceptor of a bill of exchange, knew that the name of payee was fictitious.

The fact that, A had accepted other bills drawn in the same manner before they

could have been transmitted to him by the payee if the payee had been a real person, is relevant as showing that A knew that the payee was a fictitious person.

(e) A is accused of defaming B by publishing an imputation intended to harm the reputation of B.

The fact of previous publications by A respecting B, showing ill-will on the part of A

towards B is relevant, as proving A's intention to harm B's reputation by the

particular publication in question.

The facts that, there was no previous quarrel between A and B, and that A repeated

the matter complained of as he heard it, are relevant, as showing that A did not intend to harm the reputation of B.

(f) A is sued by B for fraudulently representing to B that C was solvent, whereby B, being induced to trust C, who was insolvent, suffered loss.

The fact that, at the time when A represented C to be solvent, C was supposed to be

solvent by his neighbors and by persons dealing with him, is relevant, as showing that A made the representation in good faith.

(g) A is sued by B for the price of work done by B, upon a house of which A is owner, by the order of C, a contractor.

A's defence is that B's contract was with C.

The fact that A paid C for the work in question is relevant, as proving that A did, in

good faith, make over to C the management of the work in question, so that C was

in a position to contract with B on C's own account, and not as agent for A.

(h) A is accused of the dishonest misappropriation of property which he had found,

the question is whether, when he appropriated it, he believed in good faith, that the real owner could not be found.

The fact that public notice of the loss of the property had been given in the place

where A was, is relevant, as showing that A did not in good faith believe that the real

owner of the property could not be found.

The fact that public notice of the loss of the property had been given in the place

where A was, is relevant, as showing that A did not good faith believe that the real owner of the property could not be found.

The fact that A knew, or had reason to believe, the notice was given fraudulently by

C who had heard of the loss of the property and wished to set up a false claim to it,

is relevant as showing that the fact that A knew of the notice did not disprove A's good faith.

(i) A is charged with shooting at B with intent to kill him. In order to show A's intent, the fact of A's having previously shot at B may be proved.

(j) A is charged with sending heartening letters to B. Threatening letters previously sent by A to B may be proved, as showing the intention of the letters.

(k) The question is, whether A has been guilty of cruelty towards B, his wife.

Expressions of their feeling towards each other shortly before or after the alleged cruelty, are relevant facts.

(l) The question is, whether A's death was caused by poison.

Statement made by A during hiss illness as to his symptoms, are relevant facts.

(m) A sues B for negligence in providing him with a carriage for hire not reasonably

fit for use, whereby A was injured.

Statements made by A as to the state of his health at or near the time in question,

are relevant facts.

(n) A sues B for negligence in providing him with a carriage for hire not reasonably fit for use, whereby A was injured.

The fact that, B's attention was drawn on other occasions to the defect of that particular carriage, is relevant.

The fact that, B was habitually negligent about the carriage which he let to hire is relevant.

(o) A is tried for the murder of B by intentionally shooting him dead.

The fact that, A on other occasions shot a B is relevant as showing his intention to

shoot B.

The fact that, A was in the habit of shooting at people with intent to murder them, is irrelevant.

(p) A is tried for a crime.

The fact that, he said something indicating an intention to commit that particular crime is relevant.

The fact that, he said something indicating a general disposition to commit crimes of that class, is irrelevant.

15. Facts bearing on question whether act was accidental or intentional -

When there is a question whether an act was accidental or intentional, or done with a

particular knowledge or intention, the fact that such act formed part of a series of

similar occurrence, in each of which the person doing the act was concerned, is relevant.

Illustrations

(a) A is accused of burning down his house in order to obtain money for which it is insured.

The fact that, A lived in several houses successively each of which he insured, in

each of which he insured, in each of which a fire occurred, and after each of which

fires A received, payment from a different insurance office, are relevant, as tending to show that the fires were not accidental.

(b) A is employed to receive money from the debtors of B.

It is A's duty to make entries in a book showing the amounts received by him. He

makes an entry showing that on a particular occasion he received less than he really did receive.

The question is, whether his false entry was accidental or intentional.

The facts that, other entries made by A in the same book are false, and that the

false entry is in each case in favour of A, are relevant.

(c) A is accused of fraudulently delivering to B a counterfeit rupee.

The question is, whether the delivery of the rupee was accidental.

The facts that, soon before or soon after the delivery to B, A delivered counterfeit

rupees to C, D and E are relevant, as showing that the delivery to B was not accidental

16. Existence of course of business when relevant - When there is a question

whether a particular act was done, the existence of any course of business,

according to which it naturally would have been done, is a relevant fact.

Illustrations

(a) The question is, whether a particular letter was dispatched.

The facts that, it was the ordinary course of business for all letters put in a certain

place to be carried to the post, and that particular letter was put in that place, are relevant.

(b) The question is, whether a particular letter reached A. The fact that, it was

posted in due course, and was not returned through the Dead Letter Office, are relevant

17. Admission defined - An admission is a statement, oral or documentary which

suggests any inference as to any fact in issue or relevant fact, and which is made by

any of the persons and under the circumstances hereinafter mentioned.

18. Admission by party to proceeding or his agent; by suitor in

representative character; by party interested in subject-matter; by person

from whom interest derived - Statements made by a party to the proceeding, or

by an agent to any such party, whom the Court regards, under the circumstances of the case, as expressly or impliedly authorized by him to made them, are admissions.

By suitor in representative character - Statements made by parties to suits suing or

sued in a representative character, are not admissions, unless they were made while the party making them held that character.

Statements made by -

(1) by party interested in subject matter; persons who have any proprietary or

pecuniary interest in the subject-matter of the proceeding and who make the statement in their character of persons so interested; or

(2) by person from whom interest derived; persons from whom the parties to the suit have derived their interest in the subject-matter of the suit,

are admissions, if they are made during the continuance of the interest of the persons making the statements.

19. Admissions by persons whose position must be proved as against party

to suit- Statements made by persons whose position or liability it is necessary to

prove as against any party to the suit, are admissions, if such statements would be

relevant as against such persons in relation to such position or liability in a suit

brought by or against the made if they are made whilst the person making them

occupies such position or is subject of such liability.

Illustration

A undertakes to collect rent for B.

B sues A for not collecting rent due from C to B.

A denies that rent was due from C to B.

A statement by C that he owned B rent is an admission, and is a relevant fact as

against A, if A denies that C did owe rent to B.

20. Admission by persons expressly referred to by party to suit - Statements

made by persons to whom a party to the suit has expressly referred for information in reference to a matter in dispute are admissions.

Illustration

The question is, whether a horse sold by A to B is sound A says to B "Go and ask CC knows all about it" C's statement is an admission

21. Proof of admission against persons making them, and by or on their

behalf - Admissions are relevant and may be proved as against the person who

makes them, or his representative in interest; but they con not be proved by or on

behalf of the person who makes them or by his representative in interest, except in the following cases.

(1) An admission ma be proved by or on behalf of the person making it, when it is of

such a nature that, if the person making it were dead it would be relevant as between third person under section 32.

(2) An admission may be proved by or on behalf of the person making it, when it

consists of a statement of the existence of any state of mind or body, relevant or in

issue, made at or about the time when such state of mind or body existed, and is

accompanied by conduct rendering its falsehood improbable.

(3) An admission may be proved by or on behalf of the person making it, if it is

relevant otherwise than as an admission.

Illustrations

(a) The question between A and B is, whether a certain deed is or is not forged. A

affirms that it is genuine, B that it is forged.

A may prove a statement by B that the deed is genuine, and B may prove a

statement by A that the deed is forged; but A cannot prove a statement by himself

that the deed is genuine nor con B Prove a statement by himself that the deed is gorged.

(b) A the captain of a ship, is tried for casting her away.

Evidence is given to show that the ship was taken out of her proper course.

A produces a book kept by him in the ordinary course of his business showing

observations alleged to have been taken by him from day to day, and indicating that

the ship was not taken out of her proper course. A may prove these statement,

because they would be admissible between third parties, if he were dead under Section 32, Clause (2).

(c) A is accused of a crime committed by him at Calcutta.

He produces a letter written by himself and dated at Lahore on that day, and bearing the Lahore post-mark of that day.

The statement in the date of the letter is admissible, because if A were dead it would

be admissible under Section 32, Clause (2).

(d) A is accused of receiving stolen goods knowing them to be stolen.

He officers to prove that he refused to sell them below their value.

A may prove these statements though they are admissions, because they are explanatory of conduct influenced by facts in issue.

(e) A is accused of fraudulently having in his possession counterfeit coin which he knew to be counterfeit.

He offers to prove that he asked a skilful person to examine the coins as he doubted

whether it was counterfeit or not, and that person did examine it and told him it was genuine.

A may prove these facts for the reasons stated in the last proceeding illustration.

22. When oral admission as to contents of documents are relevant - Oral

admissions as to the contents of a document are not relevant unless and until the

party proposing them shows that he is entitled to give secondary evidence of the

contents of such document under the rules hereinafter contained, or unless the

genuineness of a document produced is in question

23. Admission in Civil cases, when relevant - In civil cases no admission is

relevant, if it is made either upon an express condition that evidence of it is not to be

given, or under circumstances from which the court can infer that the parties agreed together that evidence of it should not be given

Explanation - Nothing in this section shall be taken to exempt any barrister, pleader,

attorney or vakil from giving evidence of any matter of which he may be compelled to give evidence under Section 126.

24. Confession by inducement, threat or promise when irrelevant in criminal

proceeding - A confession made by an accused person is irrelevant in a criminal

proceeding, if the making of the confession appears to the Court to have been

caused by any inducement, threat or promise, having reference to the charge

against the accused person, proceeding from a person in authority and sufficient, in

the opinion of the Court, to give the accused person grounds, which would appear to

him reasonable, for supposing that by making it he would gain any advantage or

avoid any evil of a temporal nature in reference to the proceeding against him

25. Confession to police officer not to be proved - No confession made to police

officer shall be proved as against a person accused of any offence

26. Confession by accused while in custody of police not to be proved

against him - No confession made by any person whilst he is in the custody of a

police-officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.

Explanation - In this section "Magistrate" does not include the head of a village

discharging magisterial functions in the Presidency of Fort St. George or elsewhere,

unless such headman is a Magistrate exercising the powers of a Magistrate under the Code of Criminal Procedure,1898 (V of 1898).

27. How much of information received from accused may be proved -

Provided that, when any fact is deposed to as discovered in consequence of

information received from a person accused of any offence, in the custody of a police

officer, so much of such information, whether it amounts to a confession or not, as

relates distinctly to the fact thereby discovered, may be proved.

28. Confession made after removal of impression caused by inducement,

threat or promise, relevant - If such a confession as is referred to in Section 24 is

made after the impression caused by any inducement, threat or promise has, in the

opinion of the Court been fully removed it is relevant

29. Confession otherwise relevant not to become irrelevant because of

promise of secretary etc. - If such a confession is otherwise relevant, it does not

become it was made under a promise of secrecy. or in consequence of a deception

practiced on the accused person for the purpose of obtaining it, or when he was

drunk, or because it was made in answer to question which he need not have

answered, whatever may have been the form of those question, or because he was

not warned that he was bound to make such confession, and that the evidence of it

might be given against him

30. Consideration of proved confession affecting person making it and

others jointly under trail for same offence - When more persons than one are

being tried jointly for the same offence, and a confession made by one of such

persons affecting himself and some other of such persons is proved, the Court may

take into consideration such confession as against such other person as well as against the person who makes such confession.

Explanation - "Offence" as used in this Section, includes the abutment of, r attempt

to commit, the offence.

Illustrations

(a) A and B are jointly tried for the murder of C. It is proved that A said - "B and I murdered C". the court may consider the effect of this confession as against B.

(b) A is on his trail for the murder of C. There is evidence to show that C was

murdered by A and B, and that B said, "A and I murdered C". The statement may not be taken into consideration by the Court against A as B is not being jointly tried

31. Admissions not conclusive proof but may estop - Admissions are not

conclusive proof of the matters admitted, but they may operate as estopples under the provisions hereinafter contained.

Statements by persons who cannot be called as witness

32. Case in which statement of relevant fact by person who is dead or

cannot be found, etc. is relevant - Statements, written or verbal, of relevant facts

made by a person who is dead, or who cannot be found, or who has become

incapable of giving evidence, or whose attendance cannot be procured without an

amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases -

(1) When it relates to cause of death - When the statement is made by a person as

to the cause of his death, or as to any of the circumstances of the transaction which

resulted in his death, in cases in which the cause of that person's death comes into question.

Such statements are relevant whether the person who made them was or was not,

at the time when they were made, under expectation of death, and whatever may be

the nature of the proceeding in which the cause of his death comes into question.

(2) Or is made in course of business - When the statement was made by such person

in the ordinary course of business, and in particular when it consists of any entry or

memorandum made by him in books kept in the ordinary course of business, or in

the discharge of professional duty; or of an acknowledgement written or signed by

him of the receipt of money, goods securities or property of any kind; or of a

document used in commerce written or signed by him or of the date of a letter or other document usually dated, written or signed by him.

(3) Or against interest of maker - When the statement is against the pecuniary or

proprietary interest of the person making it, or when, if true it would expose him or

would have exposed him to criminal prosecution or to a suit for damages.

(4) Or gives opinion as to public right or custom, or matters of general interest -

When the statement gives the opinion of any such person, as to the existence of any

public right or custom or matter of public or general interest of the existence of

which if it existed, he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter had arisen.

(5) Or relates to existence of relationship - When the statement relates to the

existence of any relationship by blood, marriage or adoption between persons as to

whose relationship by blood, marriage or adoption the person making the statement

had special means of knowledge, and when the statement was made before the question in dispute was raised.

(6) Or is made in will or deed relating to family affairs - When the statement relates

to the existence of any relationship by blood, marriage or adoption between persons

deceased, and is made in any will or deed relating to the affairs of the family to

which any such deceased person belonged, or in any family pedigree, or upon any

tombstone, family portrait or other thing on which such statements are usually

made, and when such statement was made before the question in dispute was raised.

(7) Or in document relating to transaction mentioned in section 13, Clause (a). -

When the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in Section 13, Clause (a).

(8) Or is made by several persons and express feelings relevant to matter in

question - When the statement was made by a number of persons, and expressed

feelings or impressions on their part relevant to the matter in question.

Illustrations

(a) The question is, whether A was murdered by B; or

A dies of injuries received in a transaction in the course of which she was ravished.

The question is, whether she was ravished by B; or

The question is, whether A was killed by B under such circumstances that a suit would lie against B by A's widow.

Statement made by A as to the cause of his or her death referring respectively to the murder, the rape, and the actionable wrong under consideration, are relevant facts.

(a) The question is, as to the date of A's birth.

An entry in the dairy of a deceased surgeon, regularly kept in the course of business,

stating that, on a given day he attended A's mother and delivered her of a son, is a relevant fact.

(b) The question is, whether A was in Calcutta on a given day.

A statement in the diary of a deceased solicitor, regularly kept in the course of

business that, on a given day the solicitor attended A at a place mentioned in

Calcutta, for the purpose of conferring with him upon specified business, is a relevant fact.

(c) The question is, whether a ship sailed from Bombay harbour on a given day.

A letter written by a deceased member of a merchant's firm by which she was

chartered to their correspondents in London, to whom the cargo was consigned,

stating that the ship sailed on a given day from Bombay harbour, is a relevant fact.

(d) The question is whether rent was paid to A for certain land.

A letter from A's deceased agent to A, saying that he had received the rent on A's account and held it at A's orders, is a relevant fact.

(e) The question is, whether A and B were legally married.

(f) The statement of a deceased clergyman that he married them under such circumstances that the celebration would be a crime, is relevant.

(g) The question is, whether A, a person who cannot be found, wrote a letter on a certain day. The fact that a letter written by him is dated on that day, is relevant.

(h) The question is, what was the cause of the wreck of a ship .

A protest made by the Captain, whose attendance cannot be procured, is a relevant fact.

(i) The Question is, whether a given road is a public way.

A statement by A, a deceased headman of the village, that the road was public, is a relevant fact.

(j) The question is, what was the price of grain on a certain day in particular market.

A statement of the price, made by a deceased banya, in the ordinary course of his business, is a relevant fact.

(k) The question is, whether A, who is dead, was the father of B.

Statement by A that B was his won, is a relevant fact.

(l) The question is, what was the date of the birth of A.

A letter from A's deceased father to a friend, announcing the birth of A on a given day, is a relevant fact.

(m) The question is, whether and when, A and B were married.

An entry in a memorandum book by C, the deceased father of B, of his daughter's marriage with A on a given date, is a relevant fact.

(n) A sues B for a libel expressed in a painted caricature exposed in a ship window.

The question is, as to the similarity of the caricature and its libelous character. The remarks of a crowd of spectators on these points may be proved.

33. Relevancy of certain evidence for proving, in subsequent proceeding,

the truth of facts therein stated - Evidence given by a witness in a judicial

proceeding, or before any person authorized by law to take it is relevant for the

purpose of proving, in a subsequent judicial proceeding, or in a letter stage of the

same judicial proceedings, the truth of the facts which it states, when the witness is

dead or cannot be found, or is incapable of giving evidence, or is kept our of the way

by the adverse party or if his presence cannot be obtained without, an amount of

delay of expense which, under the circumstances of the case, the Court considers unreasonable;

Provided -

That the proceeding was between the same parties or their representatives in

interest;

That the adverse party in the first proceeding had the right and opportunity to cross examine;

That the questions in issue were substantially the same in the first as in the second proceeding.

Explanation - A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section

Statements made under special circumstances

34. Entries in books of account when relevant - Entries in books of account,

regularly kept in the course of business, are relevant whenever they refer to a

matter into which the Court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability.

Illustration

A sues B for Rs.1,000, and shows entries in his account books showing B to be

indebted to him to this amount. The entries are relevant but are not sufficient, without other evidence, to prove the debt.

35. Relevancy of entry in public record, made in performance of duty - An

entry in any public or other official book, register or record, stating a fact in issue or

relevant fact, and made by a public servant in the discharge of his official duty, or by

any other person in performance of a duty specially enjoined by the law of the

country in which such book, register or record is kept, is itself a relevant fact

36. Relevancy of statements in maps, charts and plans - Statements of facts in

issue or relevant facts, made in published maps or charts generally offered for public

sale, or in maps or plans made under the authority of the Central Government or any

State Government, as to matters usually represented or stated in such maps, charts,

or plans are themselves facts

37. Relevancy of statements as to fact of public nature contained in certain

Acts or notifications - When the court has to form an opinion as to the existence of

any facts of a public nature, any statement of it made in recital contained in any Act

of Parliament of the United Kingdom or in any Central Act, Provincial Act or a State

Act or in a Government notification by the Crown Representative appearing in the

Official Gazette or in any printed paper purporting to be the London Gazette or the

Government Gazette of any dominion, colony or possession of His Majesty, is a

relevant fact

38. Relevancy of statements as to any law contained in law books - When the

Court has to form an opinion as to a law of any country, any statement of such law

contained in a book purporting to be printed or published under the authority of the

Government of such country and to contain any such law, any report of a ruling of

the Courts of such country contained in a book purporting to be a report of such

rulings, is relevant.

39. What evidence to be given when statement forms part of a conversation,

documents, books or series of letters or papers - When any statement of which

evidence is given forms part of a longer statement, or of a conversation or part of an

is connected series of letters or papers, evidence shall be given of so much and no

more of the statement, conversation, document, books or series of letters or papers

as the Court considers necessary in that particular case to the full understanding of

the nature and effect of the statement, and of the circumstances under which it was

made

Judgments of courts of justice, when relevant

40. Previous judgments relevant to bar a second suit or trail - The existence

of any judgment, order or decree which by law prevents any court from taking

cognizance of a suit or holding a trial, is a relevant fact when the question is,

whether such Court ought to take cognizance of such suit or to hold such trail.

41. Relevancy of certain judgments in probate etc., jurisdiction - A final

judgment, order or decree of a Competent Court, in exercise of probate,

matrimonial, admiralty or insolvency jurisdiction, which confers upon or to take away

from any person any legal character, or which declares any person to be entitled to

any such character, or to be entitled to any specific thing not as against any specified

person but absolutely, is relevant when the existence of any legal character, or the title of any such person to any such thing, is relevant.

Such judgment, order or decree is conclusive proof -

That any legal character which it confer accrued at the time when such judgment,

order or decree come into operation;

That any legal character to which it declares and such person to be entitled, accrued

to that person at the time when such judgment, ord3er or decree declares it to have accrued to that person;

That any legal character to which it takes away from any such person ceased at the

time from which such judgment, order or decree declared that it had cased or should

cease.

And that anything to which it declares any person to be so entitled was the property

of that person at the time from which such judgment, order or decree declares that it had been or should be his property.

42. Relevancy and effect of judgment, order or decrees, other than those

mentioned in Section 41. - Judgments, orders or decrees other than those

mentioned in Section 41, are relevant if they relate to matters of a public nature

relevant to the inquiry; nut such judgments, orders or decrees are not conclusive

proof of that which they state.

Illustrations

A sues B for trespass on his land, B alleges the existence of a public right of way over the land, which A denies.

The existence of a decree in favour of the defendant, in a suit by A against C or a

trespass on the same land, in which C alleged the existence of the same right of way, is relevant, but it is not conclusive proof that the right of ways exists.

43. Judgment etc., other than those mentioned in Section 40 to 42 when

relevant - Judgments, orders or decrees other then those mentioned in Sections 40,

41 and 42, are irrelevant, unless the existence of such judgment, order or decree is a fact in issue, or is relevant, under some other provision of this Act.

Illustrations

(a) A and B separately sue C for a libel which reflects upon each of them C in each

case says that the matter alleged to libelous is true and the circumstances are such that it is probable true in each case, or in neither.

A obtains a decree against C for damages on the ground that C filed The Orient Tavern make out his justification. The fact is irrelevant as between B and C.

(b) A prosecutes B for adultery with C, A's wife.

B denies that C is A's wife, but the court convicts B of adultery.

Afterwards, C is prosecuted for bigamy in marrying B during A's lifetime. CC says

that she never was A's wife.

The judgment against B is irrelevant as against C.

(c) A prosecuted B for stealing a cow, from him, B is convicted.

A, afterwards, sues C for cow. Which B had sold to him before his conviction. As

between A and C, the judgment against B is irrelevant.

(d) A has obtained a decree for the possession of land against A,C,B's son murders A in consequence.

The existence of the judgment is relevant, as showing motive for a crime.

(e) A is charged with theft and with having been previously convicted of theft. The previous conviction is relevant as a fact in issue.

(f) A is tried for the murder of B. The fact that B prosecuted A for libel and that A

was convicted and sentenced is relevant under Section 8 as showing the motive for

the fact in issue.

44. Fraud or collusion in obtaining judgment, or incompetence of Court may

be proved - Any party to a suit or other proceeding may show that any judgment,

order or decree which is relevant under Section 40,41 or 42 and which has been

proved by the adverse party, was delivered by a Court not competent to deliver it, or

was obtained by fraud or collusion

Opinion of third persons, when relevant

45. Opinions of experts - When the Court has to form an opinion upon a point of

foreign law, or of science, or art, or as to identity of hand writing or finger-

impressions, the opinions upon that point of persons specially skilled in such foreign

law, science or art, or in questions as to identity of handwriting or finger

impressions, are relevant facts. Such person called experts.

Illustrations

(a) The question is, whether the death of A was caused by poison. The opinions of

experts as to the symptoms produced by the poison by which A is supposed to have

died, are relevant.

(b) The question is whether A, at the time of doing a certain act, was by reason of

unsoundness of mind, in capable of knowing the nature of the act, or that he was doing what was either wrong or contrary to law.

The opinions of experts upon the question whether the symptoms exhibited by A

commonly show unsoundness of mind, and whether such unsoundness of mind

usually renders persons incapable of knowing the nature of the acts which they do, or knowing that what they do is either wrong or contrary to law, are relevant.

(c) The question is, whether a certain document was written by A. Another document is produced which is proved or admitted to have been written by A.

The opinion of experts on the question whether the two documents were written by the same person or by different persons are relevant.

46. Facts bearing upon opinions of experts - Facts, not otherwise relevant, are

relevant if they support or are inconsistent with the opinion of experts when such opinions are relevant.

Illustrations

(a) The question is, whether A was poisoned by a certain poison.

The fact that other persons who were poisoned by that poison, exhibited certain

symptoms which experts affirm or deny to be the symptoms of that poison, is relevant.

(b) The question is, whether an obstruction to a harbour is caused by a certain seawall.

The fact that other harbours similarly situated in other respects, but where there

were no such sea-walls, began to be obstructed at about the same time is relevant.

47. Opinions as to handwriting, when relevant - When the Court has to form an

opinion as to the person by whom document was written or signed, the opinion of

any person acquainted with the handwriting of the person by whom it is supposed to

be written or signed that it was or was not written or signed by that person, is a

relevant fact.

Explanation - A person is said to be acquainted with the handwriting of another

person when he has seen that person write, or when he has received document

purporting to be written by that person in answer to documents written by himself to

under his authority and addressed to that person, or when in the ordinary course of

business document purporting to be written by that person have been habitually submitted to him.

Illustrations

The question is whether a given letter is in the handwriting of A, a merchant in London.

B is a merchant in Calcutta, who has written letters addressed to A and received

letters purporting to be written by him. G is B's clerk, whose duty it was to examine

and file B's correspondence. D is B's broker, to whom B habitually submitted thee

letters purporting to be written by A for the purpose advising with him thereon.

The opinions of B,C and D on the question, whether the letter is in the handwriting of A, are relevant though neither B, C or D ever saw A, write.

48. Opinion as to existence of right or custom when relevant - When the

Court has to form an opinion as to existence of any general custom or right, the

opinions as to the existence of such custom or rights, of persons who would be likely

to know of its existence if it existed, are relevant.

Explanation - The expression "general custom or right" includes customs or right common The Orient Tavern any considerable class of persons.

Illustrations

The right of the villagers of a particular village to use the water of a particular well is

a general right within the meaning of this section

49. Opinion as to usage's, tenants, etc., when relevant - When the Court has to form an opinion as to -

the usage's and tenants of any body of men or family,

the constitution and government of any religious or charitable foundation, or

the meaning of words or terms used in particular districts or by particular classes of people,

the opinions of persons having special means of knowledge thereon, are relevant facts.

50. Opinion on relationship, when relevant - When the Court has to form an

opinion as to the relationship of one person to another, the opinion expressed by

conduct, as to the existence of such relationship, of any person who, as a member of

the family or otherwise, has special means of knowledge on the subject is a relevant fact.

Provided that such opinion shall not be sufficient to prove a marriage in proceedings

under the Indian Divorce Act (IV of 1869), or in prosecutions under Sections 494,

495, 497 or 498 of the Indian Penal Code (XIV of 1860).

Illustrations

(a) The question is whether A an B were married.

The Fact that they were usually received and treated by their friends as husband and wife, is relevant.

(b) The question is whether A was the legitimate son of B.

The fact that A was always treated as such by members of the family, is relevant

51. Grounds of opinion when relevant - Whenever the opinion of any living person is relevant, the grounds on which such opinion is based are also relevant.

Illustration

An expert may give an account of experiments performed by him for the purpose of

forming his opinion.

Character when relevant

52. In civil cases character to prove conduct imputed irrelevant - In civil

cases, the fact that the character of any person concerned is such as to render

probable or improbably any conduct imputed to him, is irrelevant except in so far as

such character appears from facts otherwise relevant

53. In criminal cases, previous good character relevant - In criminal

proceedings the fact that the person accused is of good character, is relevant.

54. Previous bad character not relevant except in reply - In criminal

proceedings the fact that the accused person had a bad character is irrelevant,

unless evidence has been given that he has a character in which case it becomes relevant.

Explanation 1. - This section does not apply to cases in which the bad character of

any person is itself a fact in issue.

Explanation 2. - A previous conviction is relevant as evidence of bad character.

55. Character as affecting damages - In civil cases, the fact that the character of

any person is such as to affect the amount of damages which he ought to receive is relevant.

Explanation - In Section 52,53,54 and 55, the word "character" includes both

reputation and disposition; but except as provided in Section 54, evidence may be

given only a general reputation and general disposition and not of particular acts by which reputation or disposition was shown

PART II ON PROOF

CHAPTER III Facts which need not be proved

56. Fact judicially noticeable need not be proved - No fact of which the Court

will take judicial notice need be proved

57. Facts of which Court must take judicial notice - The Court shall take judicial

notice of the following facts;

1. All laws in force in the territory of India;

2. All public Acts passed or hereafter to be passed by Parliament of United Kingdom,

and all local and personal Acts directed by Parliament of the United Kingdom to be judicially noticed;

3. Articles of War for the Indian Army, Navy of Air force;

4. The course of proceeding of parliament of the United Kingdom, of the Constituent

Assembly of India, of Parliament and of the Legislature established under any law for

the time being in force in Province or in the States;

5. The accession and the sign manual of the Sovereign for the time being of the United Kingdom of Great Britain and Ireland;

6. All seals of which English Courts take judicial notice; the seals of all the Courts in

India and of all Courts out of India established by the authority of the Central

Government or the Crown representative; the seals off Court of Admiralty and

Maritime jurisdiction and of Notaries Public and all seals which any person is

authorized to use by the Constitution or an Act of Parliament of the United Kingdom or an Act or Regulation having the force of law in India;

7. The accession to office, names, titles, functions and signatures of the persons

filling for the time being any public office in any state, if the fact of their appointment to such office is notified in any official Gazette;

8. The existence, title and national flag of every State or Sovereign recognized by the Government of India;

9. The divisions of time, the geographical divisions of the world, and public festivals, facts and holidays notified in the Official Gazette;

10. The territories under the dominion of the Government of India;

11. The commencement, continuance and termination of hostilities between the

Government of India and any other State or body of persons;

12. The names of the members and officers of the Court, and of their deputies and

subordinate officers and assistants and also of all officers acting in execution of its

process, and of all advocates, attorneys, proctors, vakils, pleaders and other persons authorized by law to appear or act before it;

13. The rule of the road on lad or at sea.

In all these cases, and also on all matters of public history, literature, science or art, the Court may report for its aid to appropriate books or documents of reference.

If the Court is called upon by any person to take judicial notice of any fact it may

refuse to do so unless and until such person produces any such book or document as it may consider necessary to enable it to do so.

58. Facts admitted need not be proved - No fact need be proved in any

proceeding, which the parties thereto or their agents agree to admit at the hearing,

or which, before the hearing, they agree to admit by any writing under their hands

or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings;

Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admission

CHAPTER IV Of oral evidence

59. Proof of facts by oral evidence - All facts, except the contents of documents,

may be proved by oral evidence

60. Oral evidence must be direct - Oral evidence must, in all cases, whatever, be

direct; that is to say;

If it refers to a fact which could be seen, it must be the evidence of a witness who says he heard it;

If it refers to a fact which could be heard, it must be the evidence of a witness who

says he heard it;

If it refers to a fact which could be perceived by any other sense or in any other

manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner;

If it refers to an opinions or to the grounds in which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds -

Provided that the opinion of experts expressed in any treatise commonly offered for

sale, and the grounds on which such opinions are held, may be proved by the

production of such treatise if the author is dead or cannot be found or has become

incapable of giving evidence or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable.

Provided also that, if oral evidence refers to the existence or condition of any

material thing other than a document, the Court may, if it thinks fit, require the

production of such material thing for its inspection.

CHAPTER V Of documentary evidence

61. Proof of contents of documents - The contents of documents may be proved

either by primary or by secondary evidence

62. Primary evidence - Primary evidence means the document itself produced for

the inspection of the Court.

Explanation 1. - Where a document is executed in several parts, each part is primary evidence of the document.

Where a document is executed in counterparts, each counterpart being executed by

one or some of the parties only, each counterpart is primary evidence as against the parties executing it.

Explanation 2. - Where a number of documents are all made by one uniform process,

as in the case of printing, lithography or photography, each is primary evidence of

the contents of the rest; but, where they are all copies of a common original, they

are not primary evidence of the contents of the original.

Illustration

A person is shown to have been in possession of a number of placards, all printed at

one time from one original. Any one of the placards is primary evidence of the

contents of any other, but no one of them is primary evidence of the contents of the original

63. Secondary Evidence - Secondary evidence means and includes.

1. Certified copies given under the provisions hereinafter contained;

2. Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy and copies compared with such copies;

3. Copies made from or compared with the original;

4. Counterparts of documents as against the parties who did not execute them;

5. Oral accounts of the contents of a document given by some person who has himself seen it.

Illustrations

(a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original.

(b) A copy compared with a copy of a letter made by copying machine is secondary

evidence of the contents of the letter, if it is shown that the copy made by the

copying machine was made from the original.

(c) A copy transcribed from a copy, but afterwards compared with the original, is

secondary evidence, but the copy not so compared is not secondary evidence of the

original, although the copy from which it was transcribed was compared with the original.

(d) Neither an oral account of a copy compared with the original, nor an oral account

of a photo graph or machine copy of the original, is secondary evidence of the original

64. Proof of documents by primary evidence - Documents must be proved by

primary evidence except in the cases hereinafter mentioned.

65. Cases in which secondary evidence relating to documents may be given

- Secondary evidence may be given of the existence, condition or contents of a document in the following cases:

(a) When the original is shown or appears to be in the possession or power of the

person against whom the document is sought to be proved, or of any person out of

reach of, or not subject to, the process of the Court, or of any person legally bound

to produce it, and when, after the notice mentioned in Section 66, such person does not produce it;

(b) When the existence, condition or contents of the original have been proved to be

admitted in writing by the person against whom it is proved or by his representative in interest;

(c) When the original has been destroyed or lost, or when the party offering evidence

of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;

(d) When the original is of such a nature as not to be easily movable;

(e) When the original is a public document within the meaning of Section 74;

(f) When the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence;

(g) When the originals consist of numerous accounts or other documents which

cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collections.

In cases (a), (c) and (d), any secondary evidence of the contents of the documents

is admissible.

In case (b), the written admission is admissible.

In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.

In case (g), evidence may be given as to the general result of the documents by any

person who has examined them, and who is skilled in the examination of such

documents

66. Rules as to notice to produce - Secondary evidence of the contents of the

documents referred to in Section 65, Clause (a), shall not be given unless the party

proposing to give such secondary evidence has previously given to the party in

whose possession or power the document is, or to his attorney or pleader such notice

to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case;

Provided that such notice shall not be required in order to render secondary evidence

admissible in any of the following cases, or in any other case in which the Court

thinks fit to dispense with it:

1. When the document to be proved is itself a notice;

2. When from the nature of the case, the adverse party must know that he will be

required to produce it;

3. When it appears or is proved that the adverse party has obtained possession of the original by fraud or force;

4. When the adverse party or his agent has the original in Court;

5. When the adverse party or his agent has admitted the loss of the document;

6. When the person in possession of the document is out of reach, or not subject to, thee process of the Court.

67. Proof of signature and handwriting of person alleged to have signed or

written document produced - If a document is alleged to be signed or to have

been written wholly or in part by any person, the signature or the handwriting of so

much of the document as is alleged to be in that person's handwriting must be

proved to be in his hand writing

68. Proof of execution of document required by law to be attested - If a

document is required by law to be attested it shall not be sued as evidence until one

attesting witness at least has been called for the purpose of proving its execution if

there be an attesting witness alive, and subject to he process of the Court and capable of giving evidence:

Provided that it shall not be necessary to call an attesting witness in proof of the

execution of any document, not being a will, which has been registered in

accordance with the provisions of the Indian Registration Act,1908 (16 of 1908),

unless its execution by the person by whom it purports to have been executed is

specially denied

69. Proof where no attesting witness found - If no such attesting witness can be

found, or if the document purports to have been executed in the United Kingdom, it

must be proved that the attestation of one attesting witness at least is in his

handwriting, and that the signature of the person executing the document is in the

hand writing of that person.

70. Admission of execution by party to attested document - The admission of

a party to an attested document of its execution by himself shall be sufficient proof

of its execution as against him, though it be a document required by law to be

attested.

71. Proof when attesting witness denies the execution - If the attesting

witness denies or does not recollect the execution of the document its execution may

be proved by other evidence.

72. Proof of document not required by law to be attested - An attested

document not required by law to be attested may b proved as if it was unattested

73. Comparison of signature, writing or seal with others admitted or proved

- In order to ascertain whether a signature, writing or seal is that of the person by

whom it purports to have been written or made, any signature, writing or seal

admitted or proved to the satisfaction of the Court to have been written or made by

that person may be compared with the one which s to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose.

The Court may direct any person present in Court to write any words or figures for

the purpose of enabling the Court to compare the words or figures so written with

any words or figures alleged to have been written by such person.

This section applies also with any necessary modifications, to finger-impressions

Public Documents

74. Public documents - The following documents are Public documents-

(i) Documents forming the acts, or records of the acts

(a) Of the sovereign authority,

(ii) Of Official bodies and the Tribunals, and

(iii) Of public officers, legislative, judicial and executive, of any part of India or of the Commonwealth, or of a foreign country.

1. Public records kept in any State of private documents

75. Private documents - All other documents are private

76. Certified copies of Public Documents - Every public officer having the custody of a public document, which any person has a right to inspect, shall give that

person on demand a copy of it on payment of the legal fees therefor together with a

certificate written at the foot of such copy that it is a true copy of such document or

part thereof, as the case may be, and such certificate shall be dated and subscribed

by such officers with his name and his official title, and shall be sealed whenever

such officer is authorized by law to make use of a seal, and such copies so certified

shall be called certified copies.

Explanation - Any officer who, by the ordinary course of official duty, is authorized to

deliver such copies, shall be deemed to have the custody of such documents or parts

of the public documents of which they purport to be copies

77. Proof of documents by production of certified copies - Such certified copies

may be produced in proof of the contents of the public documents or parts of the

public documents of which they purport to be copies

78. Proof of other official documents - The following public documents may be

proved as follows -

(1) Acts, orders or notifications of the General Government in any of its

departments, or of the Crown Representative or of any State Government or any department of any State Government.

By the records of the departments, certified by the heads of those departments respectively, or

By any document purporting to be printed by order of any such Government or as

the case may be, of the Crown Representative;

(2) The proceedings of the Legislatures -

by the journals of those bodies respectively, or by published Acts or abstracts, or by

copies purporting The Orient Tavern be printed by order of the Government concerned;

(3) Proclamations, orders or regulations issued by Her Majesty or by the privy Council, or by any department of Her Majesty's Government,

By copies or extracts contained in the London Gazette, or purporting to be printed by the Queen's Printer;

(4) The Acts of the Executive or the proceedings of the Legislature of a foreign

country -

By journals published by their authority, or commonly received in that country as

such, or by a copy certified under the seal of the country or sovereign, or by a recognition thereof in some Central Act;

(5) The proceedings of a municipal body in a State, -

By a copy of such proceedings certified by the legal keeper thereof of by a printed book purporting to be published by the authority of such body,

(6) Public documents of any other class in a foreign country, -

by the original, or by a copy certified by the legal keeper thereof with a certificate

under the seal of a notary public, or of an Indian consul or diplomatic agent, that the

copy is duly certified by the officer having the legal custody of the original and upon

proof of the character of the document according to the law of the foreign country.

79. Presumption as to genuineness of certified copies - The Court shall

presume to be genuine every document purporting to be a certificate, certified copy,

or other document, which is by law declared to be admissible as evidence of any

particular fact, and which purports to be duly certified by any officer of the Central

Government or of a State Government, or by any officer in the State of Jammu and Kashmir who is duly authorized there to by the Central Government:

Provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf.

The Court shall also presume that any officer by whom any such document purports

to be signed or certified, held, when he signed, the official character which he claims in such paper.

80. Presumption as to documents produced as records of evidence -

Whenever any document is produced before any Court, purporting to be a record or

memorandum of the evidence, or of any part of the evidence, given by a witness in a

judicial proceeding or before any officer authorized by law to take such evidence or

to be statement or confession by any prisoner or accused person taken in accordance

with law, and purporting to be signed by any Judge or Magistrate, or by any such

officer as aforesaid, the Court shall presume.

81. Presumption as to Gazettes, newspapers, private Acts of Parliament and

other documents - The Court shall presume the genuineness of every document

purporting to be the London Gazette, or any official Gazette or the Government

Gazette of any colony, dependency or possession of the British Crown, or to be a

newspaper or journal, or to be a copy of private Act of Parliament of the United

Kingdom printed by the Queen's Printer and of every document purporting to be a

document directed by any law to be kept by any person, if such document is kept

substantially in the form required by law and is produced from proper custody.

82. Presumption as to document admissible in England without proof of seal

or signature - When any document is produced before any Court, purporting to be

a document which, by the law in force for the time being in England or Ireland,

would be admissible in proof of any particular in any Court of Justice in England or

Ireland, without proof of the seal or stamp or signature authenticating it, or of the

judicial or official character claimed by the person by whom it purports to be signed,

the Court shall presume that such seal, stamp or signature is genuine and that the

person signing it held at the time when he signed it, the judicial or official character which he claims;

and the document shall be admissible for the same purpose for which it would be

admissible in England or Ireland.

83. Presumption as to Maps or Plans made by authority of Government - The

Court shall presume that maps or plans purporting to be made by the authority of

the Central Government or any State Government were so made, and are accurate,

but maps or plans made for the purposes of any cause must be proved to be

accurate.

84. Presumption as to collections of laws and reports of decisions - The Court

shall presume the genuineness of every book purporting to be printed and published

under the authority of the Government of any country, and to contain any of the

laws of that country;and of every book purporting to contain reports of decisions of the Courts of such country.

85. Presumption as to powers of attorney - The Court shall presume that every

document purporting to be a Power of Attorney, and to have been executed before,

authenticated by, notary public, or any Court, judge, Magistrate, Indian Consul, or

Vice Consul, or representative of the Central Government, was so executed and

authenticated.

86. Presumption as to certified copies of foreign judicial records - The Court

may presume that any document purporting to be certified copy of any judicial

record of any country not forming part of India or of Her Majesty's dominions is

genuine and accurate, if the document purports to be certified in any manner which

is certified by any representative of the Central Government in or for such country to

be the manner commonly in use in that country for the certification of copies of judicial records

An officer who, with respect to any territory or place not forming part of India or Her

Majesty's dominions, is a Political Agent, therefor, as defined in Section 3, Clause

(43) of the General Clauses Act,1897 (10 of 1897) shall, for the purposes of this

section, be deemed to be a representative of the Central Government in and for the country comprising that territory or place.

87. Presumption as to Books, Maps and Charts - The Court may presume that

any book to which it may refer for information on matters of public or general

interest, and that any published map or chart, the statements of which are relevant

facts, and which is produced for its inspection, was written and published by the

person, and at the time and place, by whom or at which it purports to have been

written or published

88. Presumption as to Telegraphic Messages - The Court may presume that a

message, forwarded from a telegraph office to the person to whom such message

purports to be addressed, corresponds with a message delivered for transmission at

the office from which the massage purports to be sent, but the Court shall not make

any presumption as to the person by whom such massage was delivered for

transmission

89. Presumption as to due execution etc., of documents not produced - The

Court shall presume that every document, called for and not produced after notice to

produce, was attested, stamped and executed in the manner required by law

90. Presumption as to documents thirty years old - Where any document,

purporting or proved to be thirty years old is produced from any custody which the

Court in the particular case considers proper, the Court may presume that the

signature and every other part of such document, which purports to be in the hand

writing of any particular person, is in that person's hand writing, and in the case of

document executed or attested, that it was duly executed and attested by the

persons by whom it purports to be executed and attested.

Explanation - Documents are said to be in proper custody if they are in the place in

which and under the care of the person with whom, they would naturally be; but no

custody is improper if it is proved to have had a legitimate origin or if the circumstances of the particular case are such as to render such an origin probable.

This explanation applies also to Section 81.

Illustrations

(a) A has been in possession of landed property for a long time. He produces from his custody deeds relating to the land showing his titles to it. The custody is proper.

(b) A produces deeds relating to landed property of which he is the mortgagee. The

mortgagor is in possession. The custody id proper.

(c) A, connection of B, produces deeds relating to lands in B's possession, which were deposited with him by B for safe custody. The custody is proper.

STATE AMENDMENT U.P.

The following amendments have been made by the U.P. Civil Laws Amendment Act,1954, and the same are applicable to U.P. only -

(1) The existing section shall be re-numbered as Section 90(1) and

(a) For the words "thirty years" the words "twenty years" shall be substituted, and

(b) The following shall be inserted there after as a new sub-section (2);

(2) "Where any such document as is referred to in sub-section (1) was registered in

accordance with the law relating to registration of documents and a duly certified

copy there of is produced, the Court may presume that the signature and every to

her part of such document which purports to be in the hand writing of any particular

person, is in that person's hand writing, and in the case of a document executed or

attested, that it was duly executed and by the person by whom it purports to have been executed or attested"

U.P.

(3) After Section 90, add the following as new Section 90-A.

90-A (1) Where any registered document or a duly certified copy of a document

which is the part of the record of a Court of Justice, is produced from any custody

which the Court in the particular case considers proper, the Court may presume that the original was executed by the person by whom it purports to have been executed.

(2) The presumption shall not be made in respect of any document which is the basis of a suit or of a defense or is relied upon in the plaint or written statement.

The explanation to sub-section (1) of Section 90 will also apply to this Section.

CHAPTER VI Of the exclusion of oral by documentary evidence

91. Evidence of terms of contracts, grant and other dispositions of property reduced to form of

document - When the terms of a contract, or of a grant, or of any other disposition of

property have been reduced to the form of a document, and in all cases in which any

matter is required by law to be reduced to the form of a document, no evidence shall

be given in proof of the terms of such contract, grant or other disposition of

property, or of such matter, except the document itself, or secondary evidence of its

contents in cases in which secondary evidence is admissible under the provisions herein before contained.

Exception 1. - When a public officer is required by law to be appointed in writing, and

when it is shown that any particular person had acted as such officer, the writing by

which he is appointed need not be proved.

Exception 2. - Wills admitted to probate in India may be proved by the probate.

Explanation 1. - This section applies equally to cases in which the contracts, grants

or dispositions of property referred to are contained in one document, and to cases in which they are contained in more documents than one.

Explanation 2. - Where there are more originals than one, one original only need be proved.

Explanation 3. - The statement, in any document whatever of a fact other than the

facts referred to in this section shall not preclude the admission of oral evidence as

to the same fact.

Illustrations

(a) If a contract be contained in several letter, all the letters in which it is contained must be proved.

(b) If a contract is contained I a bill of exchange, the bill of exchange must be proved.

(c) If a bill of exchange is drawn in a set of three, one only need be proved.

(d) A contracts, in writing with B, for the delivery of indigo upon certain terms. The

contract mentioned the fact that B had paid A the price of other in contracted for

verbally on another occasion.

Oral evidence is offered that no payment was made for the other indigo. The

evidence is admissible.

(e) A gives B a receipt for money paid by B.

Oral evidence is offered of the payment.

The evidence is admissible.

92. Exclusion of evidence or oral agreement - When the terms of any such

contract, grant or other disposition of property, or any matter required by law to be

reduced to the form of a document have been proved according to the last section,

no evidence of any oral agreement or statement shall be admitted, as between the

parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying adding to, or subtracting from, its term:

Proviso (1) - Any fact may be proved which would invalidate any document, or which

would entitle any person to any decree or order relating thereto, such as fraud,

intimidation, illegality, want for due execution, want of capacity in any contracting party, want or failure of consideration, or a mistake in fact or law.

Proviso (2) - The existence of any separate oral agreements to matter on which a

document is silent, and which is not inconsistent with its terms, may be proved. In

considering whether; r not his proviso applies, the Court shall have regard to the degree of formality of the document.

Proviso (3) - The existence of any separate oral agreement, constituting, a condition

precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved.

Proviso (4) - The existence of any separate oral agreement, constituting, a condition

precedent to the attaching of any obligation under any such contract, grant or

disposition of property, may be proved, except in cases in which such contract, grant

or disposition of property, is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents.

Proviso (5) - Any usage or custom by which incidents not expressly mentioned in any

contract are usually annexed to contracts of that description, may be proved.

Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract.

Proviso (6) - Any fact may be proved which shows in what manner the language of a document is related to existing facts.

Illustrations

(a) A Policy of insurance is effected on goods "In ships from Calcutta to London".

The goods are shipped in a particular ship which is lost. The fact that the particular ship was orally excepted from the policy, cannot be proved.

(b) A agrees absolutely in writing to pay B Rs.1,000 on the first March,1873. The fact

that, at the same time an oral agreement was made that the money should not be

paid till the 31st March, cannot be proved.

(c) An estate called "The Rampur Tea Estate" is sold by a deed which contains a map

of the property sold. The fact that land not included in the map had always been

regarded as part of the estate and was meant to pass by the deed, cannot be proved.

(d) A enters into a written contract with B to work certain mines, the property of B,

upon certain terms. A was induced to do so by a misrepresentation of B's as to their value. This fact may be proved.

(e) A institutes a suit against B for the specific performance of a contract, and also

prays that the contract may be reformed as to one of its provisions, as that provision

was inserted in it by mistake. A may prove that such a mistake was made as would by law entitle him to have the contract reformed.

(f) A orders, goods of B by a letter in which nothing is said as to the time of payment

and accepts the goods on delivery. B sues A for the price. A may show that the

goods were supplied on credit for a term still unexplored.

(g) A sells B a horse and verbally warrants him sound. A gives B a paper in these words "Bought of A horse for Rs.500". B may prove the verbal warranty.

(h) A hires lodgings of B, and gives B a card on which is written - "Rooms, Rs.200 a

month". A may prove a verbal agreement that these terms were to include partial board.

A hires lodgings of B for a year, and a regularly stamped agreement, drawn up by an

attorney is made between them. It is silent on the subject of board. A may not prove that the board was included in the terms verbally.

(i) A applies to B for a debt due to A by sending a receipt for the money. B keeps the receipt and does not send the money. In a suit for the amount A may prove this.

(j) A and B make a contract in writing to take effect upon the happening of a certain

contingency. The writing s left with B, who sues A upon it. A may show the

circumstances under which it was delivered.

93. Exclusion of evidence to explain or amend ambiguous document - When

language used in a document is, on its face, ambiguous of defective, evidence may not be given of facts which would show its meaning or supply its defect.

Illustrations

(a) A agrees, in writing, to sell a horse to B for Rs.1,000 or Rs.1,500.

Evidence cannot be given to show which price was to be given.

(b) A deed contains blanks. Evidence cannot be given of facts which would not show how they were meant to be filled.

94. Exclusion of evidence against application of document of existing facts. -

When language used in a document is plain in itself, and when it applies accurately

to existing facts, evidence may not be given to show that it was not meant to apply to such facts.

Illustrations

A sells to B, by deed "my estate at Rampur containing 100 bighas" . A has an estate

at Rampur containing 100 bighas. Evidence may not be given of the fact that the

estate meant to be sold was one situated at a different place and of a different size.

95. Evidence as to document unmeaning in reference to existing facts. -

When language used in a document is plain in itself, but is unmeaning in reference to existing facts, evidence may be given to show that it was used in a peculiar sense.

A sells to B, by deed "my house in Calcutta."

A had not house in Calcutta, but it appears that he had a house at Howrah, of which B had been in possession since the execution of the deed.

These facts may be proved to show that the deed related to the house at Howrah

96. Evidence as to application of languages which can apply to one only of

several persons - When the facts are such that the language used might have been

meant to apply to any one, and could not have been meant to apply to more than

one of several persons or things evidence may be given of facts which show of those persons or things it was intended to apply to.

Illustrations

(a) A agrees to sell to B, for Rs.1,000 "my white horse". A has two white horse.

Evidence may be given of facts which show which of them was meant.

(b) A agrees to accompany B to Hyderabad. Evidence may be given of facts showing

whether Hyderabad in the Deccan or Hyderabad in the Deccan or Hyderabad in Sind was meant

97. Evidence as to application of language to one of two sets of facts to

neither of which the whole correctly applies - When the language used applies

partly to one set of existing facts and, partly to another set of existing facts, but the

whole of it does not apply correctly to either, evidence may be given to show to which of the two it was meant to apply.

Illustration

A agrees to sell to B "my land to X in the occupation of Y." A has land at X, but not in

occupation of Y, and he has land in the occupation of Y, but it is not at X. Evidence

may be given of facts showing which he meant to sell.

98. Evidence as to meaning of illegible character, etc. - Evidence may be given

to show the meaning of illegible or not commonly intelligible character, of foreign,

obsolete, technical, local or provincial expressions, of abbreviations and of words used in a peculiar sense.

Illustration

A, a sculptor, agrees to sell to B, "all my moods" A has both models and modeling tools. Evidence may be given to show which he meant to sell

99. Who may give evidence of agreement varying terms of document -

Person who are not parties to document, or their representatives in interest may give

evidence of any fact tending to show a contemporaneous agreement varying the

terms of the document.

Illustration

A and B make a contract in writing that B shall sell certain cotton, to be paid for on

delivery. At the same time they made an oral agreement that "three months" credit

shall be given to A. This could not be shown as between A and B, but it might be shown by C if it affected by his interests.

100. Saving of provisions of India Succession Act relating to Wills. - Nothing

in this Chapter contained shall be taken to affect any of the provisions of the Succession Act (X of 1965) as to the construction to Wills

PART III PRODUCTION AND EFFECT OF EVIDENCE

CHAPTER VII Of the burden of proof

101. Burden of Proof - Whoever desires any Court to give judgment as to any legal

right or liability dependent on the existence to facts which he asserts, must prove that those facts exist.

When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

Illustration

(a) A desires a Court to give judgment that B shall be punished for a crime which A says B has committed.

A must prove that B has committed the crime.

(b) A desires a Court to give judgment that he is entitled to certain land in the

possession of B, by reason of facts which he asserts, and which B denies to be true.

A must prove the existence of those facts

102. On whom burden of proof lies. - The burden of proof in a suit or proceeding

lies on that person who would fail if no evidence at all were given on either side.

Illustration

(a) A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, B's father.

If no evidence were given on either side, B would be entitled to retain his possession.

Therefore, the burden of proof is on A.

(b) A sues B for money due on a bond.

The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies.

If no evidence were given on either side, A would succeed as the bond is not disputed and the fraud is not proved.

Therefore the burden of proof is on B.

103. Burden of proof as to particular fact. - The burden of proof as to any

particular fact lies on that person who wishes the Court to believe in its existence,

unless it is provided by any law that the proof of that fact shall lie on any particular person.

Illustration

A prosecuted B for theft and wishes the Court to believe that B admitted the theft to C.A must prove the admission.

B wishes the Court to believe that, at the time in question, he was elsewhere. He must prove it.

104. Burden of proving fact to be proved to make evidence admissible - The

burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence.

Illustrations

A wishes to prove a dying declaration by B.A must prove B's death.

B wishes to prove, by secondary evidence, the contents of a lost document.

A must prove that the document has been lost.

105. Burden of proving that case of accused comes within exceptions - When

a person is accused of any offence, the burden f proving the existence of

circumstances bringing the case within any of the General Exceptions in the Indian

Penal Code(XLV of 1860) or within any special exception or proviso contained in any

other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.

Illustrations

(a) A, accused of murder, alleges, that by reason of unsoundness of mind, he did not know the nature of the act.

The burden of proof is on A.

(b) A, accused of murder, alleges, that by grave and sudden provocation, he was deprived of the power of self-control.

The burden of proof is on A.

(c) Section 325 of the Indian Penal Code(XLV of 1860) provides that whoever, except

in the case provided for by Section 335, voluntarily causes grievous hurt, shall be

subject to certain punishments.

A is charged with voluntarily causing grievous hurt under Section 352.

The burden of proving the circumstances bringing the case under Section 335 lies on A.

106. Burden of proving fact specially within knowledge - When any fact is

specially within the knowledge of any person, the burden of proving that fact is upon him.

Illustrations

(a) When a person does an act with some intention other than that which the

character and circumstances of the act suggest, the burden of proving that intention

is upon him.

(b) A is charged with traveling on a railway without a ticket. The burden of proving that he had ticket is on him.

107. Burden of proving death of person known to have been alive within

thirty years. - When the question is whether a man is alive or dead, and it is shown

that he was alive within thirty years, the burden of proving that he is dead is on the

person who affirms it.

108. Burden of proving that person is alive who has not been heard of for

seven years. - Provided that when the question is whether a man is alive or dead,

and it is proved that he has not been heard of for seven years by those who would

naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it

109. Burden of proof as to relationship in the case of partners, landlord and

tenant, principal and agent - When the question is whether persons are partners,

landlord and tenant, or principal and agent, and it has been shown that they have

been acting as such, the burden of proving that they do not stand, or have ceased to

stand to each other in those relationships respectively, is on the person who affirms it

110. Burden of proof as to ownership - When the question is, whether any

person is owner of anything of which he is shown to be in possession, the burden of

proving that he is not the owner is on the person who affirms that he is not the owner

111. Proof of good faith in transactions where one party is in relation of

active confidence. - Where there is a question as to the good faith of a transaction

between parties, one of whom stands to the other in a position of active confidence,

the burden of proving the good faith of the transaction is on the party who is in a position of active confidence.

Illustrations

(a) The good faith of a sale by a client to an attorney is in question in a suit brought by the client. The burden of proving the good faith of transaction is on the attorney.

(b) The good faith of a sale by a son just come of age to a father is in question in a suit brought by the son. The burden of proving the good faith of the trans

111A. Presumption as to certain offences. - (1) Where a person is accused of

having committed any offence specified in sub-section (2), in-

(a) any area declared to be disturbed area under any enactment, for the time being

in force, making provision for the suppression of disorder and restoration and maintenance of public order; or

(b) any area in which there has been, over a period of more than one month,

extensive disturbance of the public peace, and it is shown that such person had been

at a place in such area at a time when firearms or explosives were used at or from

that place to attack or resist the members of any armed forces or the forces charged

with the maintenance of public order acting in the discharge of their duties, it shall

be presumed, unless the contary is shown, that such person had committed such offence.

(2) The offences referred to in sub-section (1) are the following, namely -

(a) an offence under section 121, section 121-A, section 122 or Section 123 of the Indian Penal Code (45 of 1860);

(b) criminal conspiracy or attempt to commit, or abatement of, an offence under section 122 or section 123 of the Indian Penal Code (45 of 1860

112. Birth during marriage, conclusive proof of legitimacy - The fact that any

person was born during the continuance of a valid marriage between his mother and

any man, or within two hundred and eighty days after its dissolution, the mother

remaining unmarried, shall be conclusive proof that he is the legitimate son of that

man, unless it can be shown that the parties to the marriage had no access to each

other at any time when he could have been begotten

113. Proof of cession of territory - A notification in the Official Gazette that any

portion of British territory has before the commencement of Part III of the

Government of India Act,1935, (26 Geo. 5 Ch. 2) been caddied to any Native State,

Prince or Ruler, shall be conclusive proof that a valid cession of such territory took

place at the date mentioned in such notification

113A. Presumption as to abatement of suicide by a married women - When

the question is whether the commission of suicide by a women had been abetted by

her husband or any relative of her husband and it is shown that she had committed

suicide within a period of seven years from the date of her marriage and that her

husband or such relative of her husband has subjected her to cruelty, the court may

presume, having regard to all the other circumstances of the case, that such suicide

had been abetted by her husband or by such relative of her husband.

Explanation - For the purposes of this section, "cruelty" shall have the same meaning as in section 498-A of the Indian Penal Code (45 of 1860).

113B. Presumption as to dowry death - When the question is whether a person

has committed the dowry death of a women and it is shown that soon before her

death such woman had been subjected by such person to cruelty or harassment for,

or in connection with, any demand for dowry; the court shall presume that such person had caused the dowry death.

Explanation - For the purposes of this section, "dowry death" shall have the same meaning as in section 304B of the Indian Penal Code (45 of 1860).

114. Court may presume existence of certain facts - The Court may presume

the existence of any fact which it thinks likely to have happened, regard being had to

the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.

Illustration

The Court may presume -

(a) That a man who is in possession of stolen goods after the theft is either the thief

or has received the goods knowing them to be stolen, unless he can account for his possession;

(b) That an accomplice is unworthy of credit, unless he is corroborated in material

particular;

(c) That a bill of exchange, accepted or endorsed, was accepted or endorsed for good

consideration;

(d) That a thing or state of things which has been shown to be in existence within a

period shorter than that within which such things or state of things usually cease to exist, is still in existence;

(e) That judicial and official acts have been regularly performed;

(f) That the common course of business had been followed in particular cases;

(g) That evidence which could be and is not produced would, if produced be unfavorable to the person who withholds it;

(h) That if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavorable to him;

(i) That when a document creating an obligation is in the hands of the obligor, the obligation has been discharged.

But the Court shall also have regard to such facts as the following, in considering

whether such maxims do or do not apply to the particular case before it -

As to illustration (a) - A shopkeeper has in his till marked rupee soon after it was

stolen, and cannot account for its possession specifically, but is continually receiving rupees in the course of his business;

As to illustration (b) - A, a person of the highest character, is tried for causing a

man's death by an act of negligence in arranging certain machinery; B, a person of

equally good character, who also took part in the arrangement, describes precisely what was done, and admits and explains the common carelessness of A and himself;

As to illustration (bb) - A crime is committed by several persons, A,B and C, three of

the criminals, are captured on the spot and kept apart from each other. Each gives

an account of the crime implicating D, and the accounts corroborate each other in

such a manner as to render previous concert highly improbable;

As to illustration (c) - A, the drawer of a bill of exchange, was a man of business. B, the acceptor, was a young and ignorant person, completely under A's influence;

As to illustration (d) - It is proved a river ran in a certain course five years ago, but it is known that there have been floods since that time which might change its course;

As to illustration (e) - A judicial act, the regularity of which is in question, was performed under exceptional circumstances;

As to illustration (f) - The question is, whether a letter was received, it is shown to

have been posted, but the usual course of the post was interrupted by disturbances;

As to illustration (g) - A man refuses to produce a document which would bear on a

contract of small importance on which he is sued, but which might also injure the feelings and reputation of his family;

As to illustration (h) - A man refuses to answer question which he is not compelled

by law to answer but the answer, to it might cause loss to him in matters

unconnected with the matter in relation to which it is asked;

As to illustration (i) - A bond is in possession of the obliger, but the circumstances of the case are such that he may have stolen it.

114-A Presumption as to absence of consent in certain prosecutions for rape

- In a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d)

or clause (e) or clause (g) of sub-section (2) of section 376 of the Indian Penal Code

(45 of 1860), where sexual inter course by the accused is proved and the question is

whether it was without the consent of the woman alleged to have been raped and

she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent

CHAPTER VIII Estoppel

115. Estoppel - When one person has by his declaration, act or omission,

intentionally caused or permitted another person to believe a thing to be true and to

act upon such belief, neither he nor his representative shall be allowed, in any suit or

proceeding between himself and such person or his representative, to deny the truth of that thing.

Illustration

A intentionally and falsely leads B to believe that certain land belongs to A, and thereby induces B to buy and pay for it.

The land afterwards, become the property of A, and A seeks to set aside the sale on

the ground that, at the time of the sale, he had no title. He must not be allowed to prove his want to title.

116. Estoppel of tenant and of license of person in possession - No tenant of

immovable property of person claiming through such tenant shall, during the

continuance of the tenancy, be permitted to deny that the landlord of such tenant

had, at the beginning of the tenancy, a title to such immovable property; and not

person who came upon any immovable property by the license of the person in

possession thereof, shall be permitted to deny that such person has a title to such possession at the time when such license was given.

117. Estoppel of acceptor of bill of exchange, bailee or licensee - No acceptor

of a bill of exchange shall be permitted to deny that the drawer had authority of

draw such bill or to endorse it; nor shall any bailee or licensee be permitted to deny

that his bailor or licensor had, at the time when the bailment or license commenced, authority to make such bailment or grant such license.

Explanation (1) - The acceptor of a bill of exchange may deny that the bill was really

drawn by the person by whom it purports to have been drawn.

Explanation (2) - If a bailee delivers the goods bailed to a person other than the bailor, he may prove that such person had a right to them as against the bailor

CHAPTER IX Of witnesses

118. Who may testify? - All persons shall be competent to testify unless the Court

considers that they are prevented from understanding the question put to them, or

from giving rational answer to those questions, by tender years, extreme old age,

disease, whether of body and mind, or any other cause of the same kind.

Explanation - A lunatic is not incompetent to testify, unless he is prevented by his

lunacy from understanding the question put to him and giving rational answers to him

119. Dumb witnesses - A witness who is unable to speak may give his evidence in

any other manner in which he can make it intelligible, as by writing or by signs; but

such writing must be written and the signs made in open Court. Evidence so given shall be deemed to be oral evidence

120. Parties to civil suit, and their wives or husbands - Husband or wife of

person under criminal trial - In all civil proceedings the parties to the suit, and

the husband or wife of any party to the suit, shall be competent witnesses. In

criminal proceedings against any person, the husband or wife of such person, respectively, shall be a competent witness

121. Judges and Magistrate - No Judge or Magistrate shall, except upon the

special order of some Court of which he is subordinate, be compelled to answer any

questions as to his own conduct in Court as such Judge or Magistrate, or as to any

thing which came to his knowledge in Court as such Judge or Magistrate but he may

be examined as to other matters which occurred in his presence whilst he was so acting.

Illustrations

(a) A, on his trail before the Court of Session, says that a deposition was improperly

taken by B, the Magistrate. B cannot be compelled to answer question as to this,

except upon thee special order of a superior Court.

(b) A is accused before the Court of Session of having given false evidence before B,

a Magistrate. B, cannot be asked what A said, except upon the special order of the superior Court.

(c) A is accused before the Court of Session of attempting to murder a police-officer

whilst on his trail before B, a Session Judge. B may be examined as to what

occurred.

122. Communications during marriage - No person who is or has been married,

shall be compelled to disclose any communication made to him during marriage by

any person to whom he is or has been married; nor shall he be permitted to disclose

any such communication, unless the person who made it, or his representative in

interest, consents, except in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other

123. Evidence as to affairs of State - No one shall be permitted to give any

evidence derived from unpublished official records relating to any affairs of State,

except wit the permission of the officer at the head of the department concerned,

who shall give or withhold such permission as he thinks fit

124. Official communications - No public officer shall be compelled to disclose

communications made to him in official confidence, when he considers that the public

interes125. Information as to commission of offences - No Magistrate or Police-

officer shall be compelled to say whence he got any information as to the

commission of any offence, and no Revenue-Officer shall be compelled to say

whence he The Orient Tavern any information as to the commission of any offence against the public revenue.

Explanation - "Revenue-Officer" in this section means any officer employed in or about the business of any branch of the public revenue.

126. Professional communications - No barrister, attorney, pleader or vakil, shall

at any time be permitted, unless with his client's express consent to disclose any

communication made to him in the course and for thee purpose of his employment

as such barrister, pleader, attorney or vakil, by or on behalf of his client, or to state

the contents or condition of any document with which he has become acquainted in

the course and for the purpose of his professional employment or to disclose any

advice given by him to his client in the course and for the purpose of such employment.

Provided that nothing in this section shall protect from disclosure -

1. Any communication made in furtherance of any illegal purpose,

2. Any fact observed by any barrister, pleader, attorney or vakil, in the course of his

employment as such showing that any crime or fraud has been committed since the

commencement of his employment.

It is immaterial whether the attention of such barrister, pleader, attorney or vakil

was or was not directed to such fact by or on behalf of his client.

Explanation - The obligation stated in this section continues after the employment

has ceased.

Illustrations

(a) A, a client, says to B, an attorney - "I have committed forgery and I wish you to

defend me."

As the defense of a man known to be guilty is not a criminal purpose, this communication is protected from disclosure.

(b) A, a client, says to B, and attorney - "I wish to obtain possession of property by the use of forged deed on which I request you to sue."

The communication being made in furtherance of criminal purpose, is not protected from disclosure.

(c) A, being charged with embezzlement retains B, an attorney to defend him, In the

course of the proceedings B observes that an entry has been made in A's account

book, charging A with the sum said to have been embezzled, which entry was not in the book at the commencement of his employment.

This being a fact observed by B in the course of his employment showing that a

fraud has been committed since the commencement of the proceedings, it is not

protected from disclosure.

127. Section 126 to apply to interpreters etc. - The provisions of Section 126

apply to interpreters, and the clerks or servants of barristers, pleaders, attorneys

and vakils.

128. Privilege not waived by volunteering evidence - If any party to a suit

gives evidence therein at his own instance or otherwise, he shall not be deemed to

have consented thereby to such disclosure as is mentioned in Section 126, and if any

party to a suit or proceeding calls any such barrister, pleader, attorney or vakil as a

witness, he shall be deemed to have consented to such disclosure only if he

questions such barrister, attorney or vakil on matters which, but for such question, he would not be at liberty to disclose.

129. Confidential communication with Legal Advisers - No one shall be

compelled to disclose to the Court any confidential communication which has taken

place between him and his legal professional adviser, unless he offers himself as a

witness in which case he may be compelled to disclose any such communication as

may appear to the Court necessary to be known in order to explain any evidence which he has give, but not others

130. Production of title-deeds of witness, not a party - No witness who is not a

party to a suit shall be compelled to produce his title-deeds to any property or any

document by virtue of which he holds any property as pledge or mortgage, or any

document, the production of which might tend to criminate him, unless he has

agreed in writing to produce them with the person seeking the production of such deeds or some person through whom he claims

131. Production of documents which another person, having possession,

could refuse to produce - No one shall be compelled to produce documents in his

possession, which any other person would be entitled to refuse to produce if they

were in his possession, unless such last mentioned person consents to their production

132. Witness not excused from answering on ground that answer will

criminate - A witness shall not be excused from answering any question as to any

matter relevant to the matter in issue in any suit or in any civil or criminal

proceeding, upon the ground that the answer to such question will criminate or may

tend directly or indirectly to criminate such witness or that it will expose or tend directly or indirectly to expose, such witness to a penalty or forfeiture of any kind;

Provided that no such answer, which a witness shall be compelled to give, shall

subject him to any arrest or prosecution or be proved against him in any criminal

proceeding, except a prosecution for giving false evidence by such answer

133. Accomplice - An accomplice shall be competent witness against an accused

person, and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice

134. Number of witness - No particular number of witness shall in any case be required for the proof of any fact.

CHAPTER X Of the examination of witnesses

135. Order of production and examination of witness - The order in which

witness are produced and examined shall be regulated by the law and practice for

the time being relating to civil and criminal procedure respectively, and in the

absence of any such law, by the discretion of the Court

136. Judge to decide as to admissibility of evidence - When either party

proposes to give evidence of any fact, the Judge may ask the party proposing to give

the evidence in what manner the alleged fact, if proved, would be relevant; and the

Judge shall admit the evidence if he thinks that the fact, if proved, would be

relevant, and not otherwise.

If the fact proposed to be proved is one of which evidence is admissible only upon

proof of some other fact, such last-mentioned fact must be proved before evidence is

given of the fact first mentioned, unless the party undertakes to give proof of such fact and the Court is satisfied with such undertaking.

If the relevancy of the alleged fact depends upon another alleged fact being first

proved, the Judge may, in his discretion, either permit evidence of the first fact to be

given before the second fact is proved or acquire evidence to be given of the second fact before evidence is given of the first fact.

Illustrations

(a) It is proposed to prove a statement about a relevant fact by a person alleged to be dead which statement is relevant under Section 32.

The fact that 'the person is dead must be proved by the person proposing to prove

the statement, before evidence is given of the statement.

(b) It is proposed to prove by a copy the contents of a document said to be lost.

The fact that the original is lost must be proved by the person proposing to produce the copy, before the copy is produced.

(c) A is accused of receiving stolen property knowing it to be stolen.

It is proposed to prove that he denied the possession of the property.

The relevancy of denial depends on the identity of the property.

The Court may, in its discretion, either require the property to be identified before

the denial of the possession is proved or permit the denial of possession to be proved before the property is identified.

(d) It is proposed to prove a fact (A) which is said to have been the cause or effect

of a fact in issue. There are several intermediate facts (B,C and D) which must be

shown to exist before the fact (A) can be regarded as the cause or effect of the fact

in issue. The Court may either permit A to be proved before B, C and D is proved, or may require proof B, C and D before permitting proof of A.

137. Examination-in-chief - The examination of a witness, by the party who calls him, shall be called his examination-in-chief.

Cross-examination - The examination of a witness by the adverse party shall be called his cross-examination.

Re-examination - The examination of a witness, subsequent to the cross-

examination by the party who called him, shall be called his re-examination

138. Order of examinations - Witnesses shall be first examined-in-chief then (if

the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined.

The examination and cross-examination must relate to relevant facts but the cross-

examination need not to be confined to the facts which the witness testified on his

examination-in-chief.

Direction of re-examination - The re-examination shall be directed to the

explanation of matters referred to in cross-examination, and if new matter by

permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter.

139. Cross-examination of person called to produce a document - A person

summoned to produce a document does not become a witness by the mere fact that

he produces it, and cannot be cross-examination, unless and until he is called as a witness.

140. Witness to character - Witnesses to character may be cross-examined and re-examined

141. Leading questions - Any questions suggesting the answer which the person

putting it wishes or expects to receive is called a leading question.

142. When they must not be asked - Leading questions must not, if objected to

by the adverse party, be asked in an examination-in-chief, or in re-examination, except with the permission of the Court.

The Court shall permit leading questions as to matters which are introductory or undisputed or which have, in its opinion, been already sufficiently proved.

143. When they must be asked - Leading questions may be asked in cross-

examination.

144. Evidence as to matters in writing - Any witness may be asked whilst under

examination, whether any contract, grant or other disposition of property as to which

he is giving evidence, was not contained in a document, and if he says that it was, or

if he is about to make any statement as to the contents of any document, which, in

the opinion of the Court, ought to be produced, the adverse party may object to such

evidence being given until such document is produced, or until facts have been

proved which entitle the party who called the witness to give secondary evidence of

it.

Explanation - A witness may give oral evidence of statements made by other persons

about the contents of documents if such statements are in themselves relevant facts.

Illustration

The question is, whether A assaulted B.

C deposes that he heard A, say to D - "B wrote a letter accusing me of theft, and I

will be revenged on him. "This statement is relevant as showing A's motive for the

assault, and evidence may be given of it, though no other evidence is given about

the letter

145. Cross-examination as to previous statements in writing - A witness may

be cross-examined as to previous statements made by him in writing or reduced into

writing and relevant to matter in question, without such writing being shown to him,

or being proved; but if it is intended to contradict him by the writing, his attention

must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.

146. Questions lawful in cross-examination - When a witness is cross-

examined, he may, in addition to the question here in before referred to, be asked any questions which tend-

1. To test his veracity,

2. To discover who is and what is his position in life, or

3. To shake his credit, by inuring his character, although the answer to such

questions, might tend directly or indirectly to criminate him or might expose or tend

directly or indirectly to expose him to a penalty or forfeitures.

147. When witness to be compelled to answer - If any such question relates to

a matter relevant to the suit or proceeding, the provisions of Section 132 shall apply thereto.

148. Court to decide when question shall be asked and when witness

compelled to answer - If any such question relates to matter not relevant to the

suit or proceeding, except in so far it affects the credit of the witness by injuring his

character, the Court shall decide whether or not the witness shall be compelled to

answer it and may, if it thinks fit, warn the witness that he is not obliged to answer

it. In exercising its discretion the Court shall have regard to the following considerations;

(1) Such questions are proper if they are of such nature that the truth of the

imputation conveyed by them would seriously affect the opinion of the Court as to the credibility of the witness on the matter to which he testifies.

(2) Such questions are proper if they are of such nature that he truth of the

imputation conveyed by them would seriously affect the opinion of the Court as to the credibility of the witness on the matter to which he testifies.

(3) Such questions are improper if there is a great disproportion between the

importance of the imputations made against the witness's character and the

importance of his evidence.

(4) The court may if it sees fit, draw from the witness's refusal to answer, the in

ference that the answer if given would be unfavorable.

149. Question not to be asked without reasonable grounds - No such question

as is referred to in Section 148 ought to be asked, unless the person asking it has

reasonable grounds for thinking that the imputation which it conveys is well-founded.

Illustrations

(a) A barrister is instructed by an attorney or vakil that an important witness is a dakait. This is a reasonable ground for asking the witness whether he is a dakait.

(b) A pleader is informed by a person in court that an important witness is a dakait.

The informant, on being questioned by the pleader, gives satisfactory reasons for his

statement. This is a reasonable ground for asking the witness whether he is a dakait.

(c) A witness, of whom nothing whatever is known, being questioned as to his mode

of life and means of living gives unsatisfactory answer. This may be a reasonable ground for asking him if he is a dakait.

(d) A witness, of whom nothing whatever is known, being questioned as to his mode

of life and means of living gives unsatisfactory answer. This may be a reasonable

ground for asking him if he is a dakait.

150. Procedure of Court in case of question being asked without reasonable

grounds - If the court is of opinion that any such question asked was without

reasonable grounds, it may, if it was asked by any barrister, pleader, vakil or

attorney report the circumstances of the case to the High court or other authority to

which barrister, pleader, vakil or attorney is subject in the exercise of his profession

151. Indecent and scandalous questions - The Court may forbid any question or

inquiries which it regards as indecent or scandalous, although such questions or

inquiries may have some bearing on the questions before the Court unless they

relate to fact in issue or to matters necessary to be known in order to determine

whethe

152. Question intended to insult or annoy - The Court shall forbid any question

which appears to it to be intended to insult or annoy, or which, though proper in itself, appears to the Court needlessly offensive in form.

153. Exclusion of evidence to contradict answer to questions testing

veracity - When a witness has been asked and has answered any question which is

relevant to the inquiry only in so far as it tends to shake his credit by injuring his

character, no evidence shall be given to contradict him, but if he answers falsely, he may afterwards be charged with giving false evidence.

Exception 1. - If a witness is asked whether he has been previously convicted of any crime and denies it, evidence may be given of his previous conviction.

Exception 2. - If a witness is asked any question tending to impeach his impartiality, and answers it by denying the facts suggested, he may be contradicted.

Illustrations

(a) A claim against an underwriter is resisted on the ground of fraud.

The claimant is asked whether, in a former transaction he had not made a fraudulent

claim. He denies it.

Evidence is offered to show that he did make such a claim.

The evidence is in admissible.

(b) A witness is asked whether he was not dismissed from a situation for dishonesty.

He denies it.

Evidence is offered to show that he was dismissed for dishonestly.

The Evidence is inadmissible.

(c) A affirms that on a certain day he saw B at Lahore.

A is asked whether he himself was not on that day at Calcutta. He denies it. Evidence

is offered to show that A was on that day of Calcutta.

The evidence is admissible, not as contradicting A on a fact which affects his credit,

but as contradicting the alleged fact that B was seen on the day in question in Lahore.

In each of these cases the witness might, if his denial was false, be charged with giving false evidence.

(d) A is asked whether his family has not had a blood feud with the family of B

against whom he gives evidence.

He denies it. He may be contradicted on the ground that the question tends to impeach his impartiality.

154. Question by party of his own witness - The Court may, in its discretion,

permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party

155. Impeaching credit of witness - The credit of a witness may be impeached in

the following ways by the adverse party, or with the consent of the Court, by the party who calls him:

(1) by the evidence of persons who testify that they, from their knowledge of the witness, believe him to be unworthy of credit;

(2) by proof that the witness has been bribed, or has accepted the offer of a bride or has received any other corrupt inducement to give his evidence;

(3) by proof of former statement inconsistent with any part of his evidence which is

liable to be contradicted;

(4) when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character.

Explanation - A witness declaring another witness to be unworthy of credit may not,

upon his examination-in-chief, give reasons for his belief, but he may be asked his

reasons in cross-examination, and the answers which he gives cannot be

contradicted, though if they are false, he may afterwards be charged with giving false evidence.

Illustrations

A sues B for the price of goods sold and delivered to B, C says that he delivered the goods to B.

Evidence is offered to show that on a previous occasion, he said that he had not delivered the goods to B.

The evidence is admissible.

(b) A is indicted for the murder of B.

C says that B, when dying, declared that A had given B the wound of which he died.

Evidence is offered to shown that on a previous examination, C said that the wound was not given by A or in his presence.

156. Questions tending to corroborate evidence of relevant fact, admissible

- When a witness whom it is intended to corroborate gives evidence of any relevant

fact, he may be questioned as to any other circumstances which he observed at or

near to the time or place at which such relevant fact occurred, if the Court is of

opinion that such circumstances, if proved, would corroborate the testimony of the

witness as to the relevant fat which he testifies.

Illustration

A, an accomplice, gives an account of robbery in which he took part. He describes

various incidents unconnected with the robbery which occurred on his way to and from the place where it was committed.

Independent evidence of these facts may be given in order to corroborate his evidence as to the robbery itself.

157. Former statements of witness may be proved to corroborate later

testimony as to same fact - In order to corroborate the testimony of a witness,

any former statement made by such witness relating to the same fact, at about the

time when the fact took place, or before any authority legally competent to investigate the fact, may be proved.

158. What matters may be proved in connection with proved statement

relevant under Section 32 or 33 - Whenever any statement relevant under

Section 32 or 33 is proved, all matters may be proved either in order to contradict or

to corroborate, or in order to impeach or confirm the credit of the person by whom it

was made, which might have been proved if that person had been called as a witness and had denied upon cross-examination the truth of the matter suggested

159. Refreshing memory. - A witness may, while under examination refresh his

memory by referring to any writing made by himself at the time of the transaction

concerning which he questioned, or so soon afterwards that the Court considers it likely that the transaction was at that time fresh in his memory.

The witness may also refer to any such writing made by any other person and read by the witness within time aforesaid, if when he read it he knew it to be correct

When witness may use copy of document to refresh his memory - Whenever

a witness may refresh his ness may refresh his memory by reference to any

document, he may, with the permission of the Court, refer to a copy of such document.

Provided the Court be satisfied that there is sufficient reason for the non-production of the original.

An expert may refresh his memory by reference to professional treatises

160. Testimony to facts stated in document mentioned in Section 159 - A

witness may also testify to facts mentioned in any such document as is mentioned in Section 159, although he has no specific recollection of

the facts themselves, if he is sure that the facts were correctly recorded in the document.

Illustration

A book-keeper may testify to facts recorded by him in books regularly kept in the

course of business, if he knows that the books were correctly kept, although he has forgotten the particular transactions entered.

161. Right of adverse party as to writing used to refresh memory - Any

writing referred to under the provisions of the two last preceding Sections must be

produced and shown to the adverse party if he requires it; such party may, if he pleases, cross-examine the witness there upon.

162. Production of document - A witness summoned to produce a document

shall, if it is in his possession or power, bring it to Court, notwithstanding any

objection which there may be to its production or its admissibility. The validity of any such objection shall be decided on by the Court.

The Court, if it sees fit, may inspect the document, unless it refers to matters of State, or take other evidence to enable it to determine on its admissibility.

Translation of document - If for such purpose it is necessary to cause any

document to be translated, the Court may, if it thinks fit direct the translator to keep

the contents secret, unless the document is to be given in evidence; and if the

interpreter disobeys such direction, he shall be held to have committed an offence

under Section 166 of the Indian Penal Code (XLV of 1860).

163. Giving, as evidence, of document called for and produced on notice -

When a party calls for a document which he has given the other party notice to

produce, and such document is produced and inspected by the party calling for its

production, he is bound to give it as evidence if the party producing it requires him

to do so

164. Using, as evidence, of document, production of which was refused on

notice - When a party refuses to produce a document which he has had notice to

produce, he cannot afterwards use the document as evidence without the consent of the other party or the order of the Court.

Illustration

A sues B on an agreement and gives B notice to produce it. At the trail, A calls for

the document and B refuses to produce it. A gives secondary evidence of its

contents. B seeks to produce the document itself to contradict the secondary

evidence given by A, or in order to show that the agreement is not stamped. He cannot do so.

165. Judge's power to put questions or order production - The Judge may, in

order to discover or to obtain proper proof of relevant facts, ask any question he

pleases, in any form at any time, of any witness, or of the parties about any fact

relevant or irrelevant; and may order the production of any document or thing; and

neither the parties nor their agents shall be entitled to make any objection to any

such question or order, nor, without the leave of the Court, The Orient Tavern cross-examine any witness upon any answer given in reply to any such question.

Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved.

Provided also that this Section shall not authorize an Judge to compel any witness to

answer any question or produce any document which such witness would be entitled

to refuse to answer or produce under Sections 121 to 131, both inclusive, if the

questions were asked or the documents were called for by the adverse party; nor

shall the Judge ask any question which it would be improper for any other person to

ask under Section 148 or 149; nor shall he dispense with primary evidence of any

docum166. Power of jury or assessors to put questions - In cases tried by jury

or with assessors, the jury or assessors may put any question to the witnesses,

through or by leave of the Judge, which the judge himself might put and which he considers properent, except in the cases herein before excepted.

CHAPTER XI Of improper admission and rejection of evidence

167. No new trail for improper admission or rejection of evidence - This

improper admission or rejection of evidence shall not be ground of itself for a new

trail or reversal of any decision in any case, if it shall appear to the Court before

which such objection is raised that, independently of the evidence objected to and

admitted, there was sufficient evidence to justify the decision, or that, if the rejected evidence had been received, it ought not to have varied the decision.

THE SCHEDULE - (Enactment Repealed.) Rep. by the Repealing Act, 1938 (I of 1938), Section 2 and Schedule